Diaz v. Pan Am. World Airways, Inc.

Decision Date10 May 1971
Docket NumberNo. 30098.,30098.
Citation442 F.2d 385
PartiesCelio DIAZ, Jr., Plaintiff-Appellant, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Eleanor L. Schockett, Miami, Fla., for plaintiff-appellant.

Stephen H. Kimatian, O'Donnell & Schwartz, New York City, for Transport Workers Union of America, AFL-CIO, amicus curiae.

Stanley P. Hebert, Gen. Counsel, Russell Specter, Deputy Gen. Counsel, Gladys Maxine Bethel, David Cashdan, Attys., Washington, D. C., E. E. O. C., amicus curiae.

Herbert Prashker, Poletti, Freidin, Prashker, Feldman & Gartner, New York City, James L. Armstrong, III, Smathers & Thompson, Miami, Fla., and Robert H. Burns, Miami Beach, Fla., for defendant-appellee; Murray Gartner, Lawrence A. Katz, New York City, James L. Armstrong, Miami, Fla., of counsel.

Gilbert Feldman, Barbara J. Hillman, Chicago, Ill., for Air Line Stewards and Stewardesses Assn., amicus curiae.

Before TUTTLE, AINSWORTH and SIMPSON, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied May 10, 1971.

TUTTLE, Circuit Judge:

This appeal presents the important question of whether Pan American Airlines' refusal to hire appellant and his class of males solely on the basis of their sex violates § 703(a) (1) of Title VII of the 1964 Civil Rights Act. Because we feel that being a female is not a "bona fide occupational qualification" for the job of flight cabin attendant, appellee's refusal to hire appellant's class solely because of their sex, does constitute a violation of the Act.

The facts in this case are not in dispute. Celio Diaz applied for a job as flight cabin attendant with Pan American Airlines in 1967. He was rejected because Pan Am had a policy of restricting its hiring for that position to females. He then filed charges with the Equal Employment Opportunity Commission (EEOC) alleging that Pan Am had unlawfully discriminated against him on the grounds of sex. The Commission found probable cause to believe his charge, but was unable to resolve the matter through conciliation with Pan Am. Diaz next filed a class action in the United States District Court for the Southern District of Florida on behalf of himself and others similarly situated, alleging that Pan Am had violated Section 703 of the 1964 Civil Rights Act by refusing to employ him on the basis of his sex; he sought an injunction and damages.

Pan Am admitted that it had a policy of restricting its hiring for the cabin attendant position to females. Thus, both parties stipulated that the primary issue for the District Court was whether, for the job of flight cabin attendant, being a female is a "bona fide occupational qualification (hereafter BFOQ) reasonably necessary to the normal operation" of Pan American's business.

The trial court found that being a female was a BFOQ, D.C., 311 F.Supp. 559. Before discussing its findings in detail, however, it is necessary to set forth the framework within which we view this case.

Section 703(a) of the 1964 Civil Rights Act provides, in part:

(a) It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\'s race, color, religion, sex or national origin * * *.

The scope of this section is qualified by § 703(e) which states:

(e) Notwithstanding any other provision of this subchapter,
(1) it shall not be an unlawful employment practice for an employer to hire and employ employees * * * on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise * * *.

Since it has been admitted that appellee has discriminated on the basis of sex, the result in this case, turns, in effect, on the construction given to this exception.

We note, at the outset, that there is little legislative history to guide our interpretation. The amendment adding the word "sex" to "race, color, religion and national origin" was adopted one day before House passage of the Civil Rights Act. It was added on the floor and engendered little relevant debate. In attempting to read Congress' intent in these circumstances, however, it is reasonable to assume, from a reading of the statute itself, that one of Congress' main goals was to provide equal access to the job market for both men and women. Indeed, as this court in Weeks v. Southern Bell Telephone and Telegraph Co., 5 Cir., 408 F.2d 228 at 235 clearly stated, the purpose of the Act was to provide a foundation in the law for the principle of nondiscrimination. Construing the statute as embodying such a principle is based on the assumption that Congress sought a formula that would not only achieve the optimum use of our labor resources but, and more importantly, would enable individuals to develop as individuals.

Attainment of this goal, however, is, as stated above, limited by the bona fide occupational qualification exception in section 703(e). In construing this provision, we feel, as did the court in Weeks, supra, that it would be totally anomalous to do so in a manner that would, in effect, permit the exception to swallow the rule. Thus, we adopt the EEOC guidelines which state that "the Commission believes that the bona fide occupational qualification as to sex should be interpreted narrowly." 29 CFR 1604.1(a) Indeed, close scrutiny of the language of this exception compels this result. As one commentator has noted:

"The sentence contains several restrictive adjectives and phrases: it applies only `in those certain instances\' where there are `bona fide\' qualifications `reasonably necessary\' to the operation of that `particular\' enterprise. The care with which Congress has chosen the words to emphasize the function and to limit the scope of the exception indicates that it had no intention of opening the kind of enormous gap in the law which would exist if for example an employer could legitimately discriminate against a group solely because his employees, customers, or clients discriminated against that group. Absent much more explicit language, such a broad exception should not be assumed for it would largely emasculate the act." (emphasis added) 65 Mich.L.Rev. (1966).

Thus, it is with this orientation that we now examine the trial court's decision. Its conclusion was based upon (1) its view of Pan Am's history of the use of flight attendants; (2) passenger preference; (3) basic psychological reasons for the preference; and (4) the actualities of the hiring process.

Having reviewed the evidence submitted by Pan American regarding its own experience with both female and male cabin attendants it had hired over the years, the trial court found that Pan Am's current hiring policy was the result of a pragmatic process, "representing a judgment made upon adequate evidence acquired through Pan Am's considerable experience, and designed to yield under Pan Am's current operating conditions better average performance for its passengers than would a policy of mixed male and female hiring." (emphasis added) The performance of female attendants was better in the sense that they were superior in such non-mechanical aspects of the job as "providing reassurance to anxious passengers, giving courteous personalized service and, in general, making flights as pleasurable as possible within the limitations imposed by aircraft operations."

The trial court also found that Pan Am's passengers overwhelmingly preferred to be served by female stewardesses. Moreover, on the basis of the expert testimony of a psychiatrist, the court found that an...

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